DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/6312)

THE MATHE FAMILY TRUST (THE TRUSTEE FOR) T/AS ALL CLASS CAULKING PTY. LTD. AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS CAULKING AND SEALING ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 30 JULY 2021

Application for approval of THE MATHE FAMILY TRUST (THE TRUSTEE FOR) T/As ALL CLASS CAULKING PTY. LTD. and the CFMEU (Victorian Construction and General Division) Subcontractors Caulking and Sealing Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as THE MATHE FAMILY TRUST (THE TRUSTEE FOR) T/As ALL CLASS CAULKING PTY. LTD. and the CFMEU (Victorian Construction and General Division) Subcontractors Caulking and Sealing Enterprise Agreement 2020-2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by the Construction, Forestry, Maritime, Mining and Energy Union. The Agreement is a single enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[3] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[4] The title of the Agreement in the Notice of Employee Representational Rights was different to the title clause in the proposed Agreement. However, I am satisfied that in all of the circumstances and having regard to Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others 1, this constitutes a minor procedural or technical error for the purpose of s.188(2)(a). Further, I am satisfied that the employees covered by the Agreement were not likely to be disadvantaged by the error.

[5] The Construction, Forestry, Maritime, Mining and Energy Union being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 6 August 2021. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT

1 [2019] FWCFB 318.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicants, the Mathe Family Trust trading as All Class Caulking Pty. Ltd. and the CFMEU (Victorian Construction and General Division) Subcontractors Caulking and Sealing Enterprise Agreement 2020-2023, sought approval from the Fair Work Commission for the proposed agreement. The dispute centred on the terms and conditions set forth in the enterprise agreement, which aimed to govern the relationship between the employer and its employees within the caulking and sealing sector. The case was heard before the Fair Work Commission, which is responsible for overseeing the approval of enterprise agreements under the Fair Work Act 2009.

The key legal issues before the Commission involved the validity and enforceability of the proposed agreement. The applicants needed to demonstrate that the agreement was made in good faith, that it complied with the procedural requirements of the Fair Work Act, and that it did not unfairly discriminate against any group of employees. Additionally, the Commission had to ensure that the agreement met the test of being "better off overall" for the employees it covered, as required by the legislation. The Commission also examined whether the agreement contained provisions that were contrary to public policy or inconsistent with the protections afforded by the National Employment Standards.

In delivering its decision, the Commission considered the evidence and arguments presented by both parties. It found that the agreement was made in good faith and that the process followed to reach the agreement was procedurally sound. The Commission determined that the proposed agreement did not unfairly discriminate against any group of employees and that it met the "better off overall" test. Furthermore, the Commission was satisfied that the agreement did not contain any provisions that were contrary to public policy or inconsistent with the protections afforded by the National Employment Standards. Based on these findings, the Commission approved the proposed agreement.

The Fair Work Commission granted approval for the CFMEU (Victorian Construction and General Division) Subcontractors Caulking and Sealing Enterprise Agreement 2020-2023, finding it to be valid and enforceable under the Fair Work Act. The approved agreement will now govern the employment terms and conditions for employees within the caulking and sealing sector in Victoria, as represented by the applicants.

Construction, Forestry, Maritime, Mining and Energy Union

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established